The Charlottesville City Council denied an appeal Tuesday night that challenged the approval process of a proposed six-story building on East Water Street.

“This is an unusual appeal in that the appellant is an abutting property owner who resides on the opposite side of Water Street from the proposed project,” said Mary Joy Scala, the city’s preservation and design planner. “The appellant is not, as is more typical, the project applicant.”

In April, the Board of Architectural Review approved the final details for a proposed by-right mixed-use building at 550 E. Water St.

The 70-foot building is proposed for a 0.28-acre parcel that currently serves as a parking lot for the nearby C&O Restaurant and sits between the former C&O Depot and King Warehouse.

Samuel Hellman — who owns a condominium unit in the Holsinger building directly across from 550 E. Water St. — filed an appeal of the BAR’s process in May and argued that the BAR “failed to consider whether the proposed construction met the Charlottesville Architecture Design Control district design guidelines.”

The appeal pointed to two ADC guidelines calling for an attempt to keep new buildings within a maximum of twice the “prevailing height and width in the surrounding sub-area” and the height of new buildings in commercial areas to be within 130 percent “of the prevailing average on both sides of the block.”

Hellman alleged these calculations were never made nor were part of the BAR’s discussions, thus invalidating the certificate of appropriateness that the BAR granted.

“The BAR is not required to make height calculations,” Scala said. “The guidelines are not regulations; they are intended to provide a general design framework and to assist the BAR in making consistent decisions.”

Scala told the council that the BAR considered the height of the proposed building at its meetings and discussed the relationship with existing buildings.

Staff said in their written response that the Water Street sub-area of the Downtown ACD is not technically a commercial area because ACD guidelines described the sub-area as “industrial,” “larger warehouse scale” and the “backyard of Main Street.” Thus, the commercial area guideline did not apply.

Staff also said the 130 percent guideline only applied to street walls and not the overall height of a building.

The guideline that says buildings should be within 200 percent of the “prevailing height and width” of the sub-area, however, did apply, and the BAR found that the proposed building was in compliance with it, Scala said.

Staff’s response also noted that the term “prevailing height and width” is not defined in the ADC guidelines.

Although the city does not catalogue the height and width of every building in ADC sub-areas, staff said the BAR was provided information about nearby building heights to the BAR for context.

Given your argument, the building that your client lives in could not have been built.

Councilor Kathy Galvin

David Thomas, an attorney with MichieHamlett representing Hellman, said city code requires the ADC guidelines regarding height to be considered in the approval process.

“The question before this City Council here tonight is whether or not the BAR actually substantively considered … the height and width of new buildings within a maximum of 200 percent of the prevailing height and width in the surrounding sub-area,” Thomas said.

Thomas also said the staff report to the BAR for the proposed building “cherry-picks” the six tallest buildings downtown and did not consider buildings closer to the site.

“The prevailing height of the six buildings closest to the proposed site is 2.67 stories,” Thomas said. “And the proposed building is six [stories] — that’s not within 200 [percent].”

“Given your argument, the building that your client lives in could not have been built,” Councilor Kathy Galvin said to Thomas. “The Holsinger is in this sub-area that we’re talking about, and it is the scale of the building that is being discussed tonight.”

The five-story Holsinger building was constructed in 2006.

Galvin said arguments for more precision in regulations support a change to a form-based code.

“My normal default position is to defer to the BAR or the Planning Commission, but in this case, I’m going to support the appeal,” Councilor Bob Fenwick said. “This part of Charlottesville and this part of Water Street is very special — it’s got the old train station, it’s got the C&O Restaurant, it really has a different feel from 60, 70, 80 yards west.”

Fenwick said he felt the proposed building was not in keeping with the character of the area and said the Holsinger building — even if it is out of scale — should not control the council’s discussion.

Council denied the appeal by a vote of 4 to 1, with Fenwick voting to uphold the appeal.

Thomas said in an email that an appeal to City Circuit Court is likely.